Category: Department of Homeland Security

The U.S. Citizenship and Immigration Services (USCIS) has released a guidance memo on L-1B visas for “specialized knowledge” workers, finally fulfilling a promise made in 2012. Issued as a draft, the agency will accept comments through early May and the final version will go into effect at the end of August 2015.

Employees are said to hold “specialized” or “advanced” knowledge if their expertise isn’t easily transferrable to another employee. The L-1B visa category is one of few tools available to multinational companies to transfer staff with specialized knowledge from a foreign branch to a related U.S. office, but recent dramatic increases in L-1B denial rates have frustrated many businesses. This guidance offers modest clarification to the current USCIS concept of “specialized” and “advanced” knowledge and includes a checklist of acceptable conditions for L-1B applications.

Recent denial rates for L-1Bs have been staggering. Based on recently released data from USCIS, the National Foundation for American Policy (NFAP) found that the denial rate for L-1B petitions increased from six percent in 2006 to an historic high of 35 percent in 2014, even as applicable laws and regulations remained unchanged.1 Incredibly, the denial rate for L-1B petitions for Indian employees stood at 56 percent for 2012 through 2014, compared to an average denial rate of 13 percent for all other nationalities. The NFAP report also found that the number of applications received by USCIS dropped by 23 percent between 2012 and 2014, demonstrating that denials have discouraged U.S. employers from transferring these skilled individuals into the United States.

The American Immigration Lawyers Association (AILA) welcomed the draft of the long-awaited policy memo. “Uneven adjudication of L-1B visa applications over the last several years have stymied businesses trying to ramp-up production or services in the United States, hurting the economy and costing American jobs,” notes AILA President Leslie Holman. “The tenor and tone of the memo is a positive step forward, reiterating and expanding on many of the principles in previous memos. We hope for a more seamless, straightforward, and consistent adjudication system for L-1B visas. Training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated, and essential to bringing common sense back to this process.”2

The principal concerns about the memo are whether certain restrictive adjudication practices will become institutionalized and if Service Center personnel will follow the guidance on recognizing an earlier approval for the same employer and employee when the approval was granted by a U.S. Consulate for a blanket L-1B petition.

References:

1“L-1 Denial Rates Increase Again For High Skill Foreign Nationals.” National Foundation for American Policy, NFAP Policy Brief, March 2015.

While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.

Pre-Registration for Adjustment of Status and Enhanced Worker Portability

This was the big surprise of the night.

Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application. Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and will be implemented by a formal regulation.

A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”

If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.

Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”

Foreign Entrepreneurs

Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.

L-1B Specialized Knowledge Workers

DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.

Work Permits for H-4 Visa Holders

A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).

Optional Practical Training (OPT)

The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.

PERM Labor Certification

A full rulemaking will be undertaken to modernize the PERM program.

Visa Modernization. A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law. Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.

Important Reminder

None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.

For the past 10 years, the debate on immigration reform has only intensified. With Congress repeatedly failing to act on any meaningful legislation for the sake of partisan politics, someone needs to step up and address the problem. And that someone should be President Obama.

With legislative gridlock firmly in place, official policy has been to simply reinforce the same broken laws — to the tune of $18 billion dollars per year. We currently spend over $3.5 billion more on immigration and border enforcement that all other federal law enforcement combined.

But President Obama doesn’t have much room to really make any permanent difference in immigration laws as his options are temporary solutions to a long-term issue. The controversial Deferred Action for Childhood Arrivals (DACA) program may serve as a model for next steps.

The president has the ability to determine how to enforce the laws, meaning that the Department of Homeland Security — the agency responsible for immigration enforcement — can decide to target higher-risk individuals and focus less on the undocumented parents or other relatives of citizens and the so-called DREAMers.

The president can also create a procedure for these individuals to come forward and seek out temporary relief until Congress can enact permanent reform legislation. This way, undocumented immigrants who are contributing members of our society can remain with family, local economies can stabilize and we can focus on the dangerous individuals trying to make their way into the US.

Since 2001, over 4,000,000 undocumented immigrants have been deported — 2,000,000 during Obama’s administration alone. Expansion of DACA is the first step in the right direction.

It’s important to remember that deferring actions is an administrative decision, meaning that these solutions aren’t the lasting legislation that we so desperately need. The next administration could reverse any decisions made by President Obama. For now though, temporary relief can help ease the burden of a broken immigration system.

For much of the summer, the immigration news has been dominated by the recent surge of some 60,000 unaccompanied minors and young children with their mothers fleeing the violence and lawlessness in Honduras, Guatemala, and El Salvador. The Central American humanitarian crisis has resulted in a national debate about how to treat this vulnerable population: send them back to their home countries or grant them humanitarian relief in the United States. Below is a very brief overview of what the federal government’s response has been thus far, a depiction of conditions on the ground, and a historical perspective on the numbers.

Shortly after the crisis emerged, the Obama Administration marshaled the resources of the numerous federal agencies involved in the apprehension, processing, housing, and repatriation of unaccompanied minor children, and sought emergency funding from Congress. Unfortunately, the Senate and the House of Representatives could not agree before their August 4 recess, and will have to resume negotiations and deliberations when Congress returns after Labor Day. In the meantime, the immigration courts have been instructed to expedite the hearings these immigrants are afforded to determine if their fears are credible, if they are eligible for asylum status, or if they should be deported.

While many of the children have been reunited with other family members who already live in the United States or have been released to sponsors, many others are being detained in detention centers awaiting hearings. One such center is the federal detention center at Artesia, a tiny town in Southeastern New Mexico. Artesia has been thrown into the national spotlight because the federal training center located there was turned into a make-shift detention center for women and children fleeing violence in Central America.

In the wake of the crisis, the immigration bar mounted a massive pro bono effort to ensure that detainees are afforded due process. Teams of experienced immigration lawyers, many of whom are members of the American Immigration Lawyers Association, are volunteering their time and experience to help these mothers and children. The following dispatches from lawyers who have spent a week at Artesia sheds some light on the conditions in these detention centers:

“I spent last week at the Artesia ‘family detention’ center, a 4-hour drive from both Albuquerqueand El Paso. We had a group of roughly ten volunteers (attorneys, translators, and administrative staff) trying to stop the rapid deportations and see that the women and their children get some modicum of due process. This was the first week there has been a full time volunteer attorney presence on site during the month it has been open.

“The first impression you get . . . is that all the children are sick, with coughs at minimum. They are dehydrated and listless. They are cold — there were two mornings where the temperature was around 60, and there were no jackets or blankets, so mothers and kids walked around with towels wrapped around their shoulders for warmth. Nearly all of them have valid claims for asylum — the majority based on domestic violence or gang issues. An unfortunate number were already deported without the opportunity to even consult with an attorney. Some mothers are giving up and asking to be deported because their kids are so sick.” [Editor’s Note: Individuals are giving up even though the conditions in their home countries are dire. For example, five recent Honduran deportees were murdered by gangs upon their arrival in Honduras. NPR, 8/21/2014.]

One pro bono lawyer from Oregon describes her experience in Artesia in this way:

“The lack of justice, due process, and the gross infringement on basic human rights at Artesia is truly staggering. . . . We need to send our members here to see and experience what is happening firsthand, so that they can shed light on this very dark place. . . . These are the most vulnerable people in the world, and our government is using them to send the message that America’s southern border is closed. As advocates, we can’t sit by and allow this voice of hate to be the loudest.”

A third volunteer lawyer reports:

“Women and children detained at length, being refused a chance for a fair hearing and access to counsel, and ultimately being sent back to the danger from which they fled. That’s what we’re seeing at Artesia . . . .

It shouldn’t be like this. But this is what we’ve come to. We need to help these families, to offer them due process and humane conditions, and ultimately address the root cause of this crisis: the conditions in Central America and the smugglers and traffickers who are making money off the misery of others.”

The New York Times highlighted a recent lawsuit filed by the American Immigration Council and other groups challenging the governments policies denying a fair deportation process to mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to the United States seeking safety.

The August 26, 2014 editorial stated:

“But the treatment of hundreds of these migrants in a makeshift detention center in Artesia, N.M., is appalling evidence that this promise was empty, according a lawsuit filed Friday in Federal District Court by a coalition of civil-rights organizations.

The immigrant detention center was supposed to be a safe haven for mothers and young children as their cases go through court. Though the detainees, as unauthorized immigrants, have no legal right to lawyers, advocates and immigration lawyers have made strenuous efforts to provide representation. The migrants have fled countries racked by gang and drug violence, and many have credible claims to asylum.”

Revising the layout of the form and expanding it from one to two pages.

Form I-9 Revision Date

The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.” Employers should begin using this new form immediately.

Employers will have a 60-day grace period, until May 7, 2013, to comply by using the new form. After May 7, 2013, employers who fail to use this new form may be subject to penalties imposed under the Immigration and Naturalization Act. These provisions, as usual, would be enforced by Immigration and Customs Enforcement (ICE).

The M-274 Handbook for Employers is in the process of being updated as well by USCIS in order to correspond to the new Form I-9. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised M-274 Handbook for Employers has been updated.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

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